[Federal Register: August 29, 2008 (Volume 73, Number 169)]
[Rules and Regulations]
[Page 51087-51123]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 20
Migratory Bird Hunting; Early Seasons and Bag and Possession Limits for
Certain Migratory Game Birds in the Contiguous United States, Alaska,
Hawaii, Puerto Rico, and the Virgin Islands; Final Rule; Proposed
Frameworks for Late-Season Migratory Bird Hunting Regulations; Proposed
Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 20
[FWS-R9-MB-2008-0032; 91200-1231-9BPP-L2]
RIN 1018-AV62
Migratory Bird Hunting; Early Seasons and Bag and Possession
Limits for Certain Migratory Game Birds in the Contiguous United
States, Alaska, Hawaii, Puerto Rico, and the Virgin Islands
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: This rule prescribes the hunting seasons, hours, areas, and
daily bag and possession limits of mourning, white-winged, and white-
tipped doves; band-tailed pigeons; rails; moorhens and gallinules;
woodcock; common snipe; sandhill cranes; sea ducks; early (September)
waterfowl seasons; migratory game birds in Alaska, Hawaii, Puerto Rico,
and the Virgin Islands; and some extended falconry seasons. Taking of
migratory birds is prohibited unless specifically provided for by
annual regulations. This rule permits taking of designated species
during the 2008-09 season.
DATES: This rule is effective on September 1, 2008.
ADDRESSES: You may inspect comments received on the migratory bird
hunting regulations during normal business hours at the Service's
office in room 4107, Arlington Square Building, 4501 N. Fairfax Drive,
Arlington, Virginia. You may obtain copies of referenced reports from
the address above or from the Division of Migratory Bird Management's
Web site at http://www.fws.gov/migratorybirds/reports/reports.html.
FOR FURTHER INFORMATION CONTACT: Robert Blohm, Chief, or Ron W. Kokel,
Division of Migratory Bird Management, U.S. Fish and Wildlife Service,
(703) 358-1714.
SUPPLEMENTARY INFORMATION:
Regulations Schedule for 2008
On May 28, 2008, we published in the Federal Register (73 FR 30712)
a proposal to amend 50 CFR part 20. The proposal provided a background
and overview of the migratory bird hunting regulations process, and
dealt with the establishment of seasons, limits, and other regulations
for hunting migratory game birds under Sec. Sec. 20.101 through
20.107, 20.109, and 20.110 of subpart K. Major steps in the 2008-09
regulatory cycle relating to open public meetings and Federal Register
notifications were also identified in the May 28 proposed rule.
Subsequent documents will refer only to numbered items requiring
attention. Therefore, it is important to note that we will omit those
items requiring no attention, and remaining numbered items will be
discontinuous and appear incomplete.
On June 18, 2008, we published in the Federal Register (73 FR
34692) a second document providing supplemental proposals for early-
and late-season migratory bird hunting regulations. The June 18
supplement also provided detailed information on the 2008-09 regulatory
schedule and announced the SRC and Flyway Council meetings.
On June 25 and 26, 2008, we held open meetings with the Flyway
Council Consultants at which the participants reviewed information on
the current status of migratory shore and upland game birds and
developed recommendations for the 2008-09 regulations for these species
plus regulations for migratory game birds in Alaska, Puerto Rico, and
the Virgin Islands, special September waterfowl seasons in designated
States, special sea duck seasons in the Atlantic Flyway, and extended
falconry seasons. In addition, we reviewed and discussed preliminary
information on the status of waterfowl as it relates to the development
and selection of the regulatory packages for the 2008-09 regular
waterfowl seasons. On July 24, 2008, we published in the Federal
Register (73 FR 43290) a third document specifically dealing with the
proposed frameworks for early-season regulations. On August 27, 2008,
we published a fourth document in the Federal Register which contained
final frameworks for early migratory bird hunting seasons from which
wildlife conservation agency officials from the States, Puerto Rico,
and the Virgin Islands selected early-season hunting dates, hours,
areas, and limits.
On July 30-31, 2008, we held open meetings with the Flyway Council
Consultants at which the participants reviewed the status of waterfowl
and developed recommendations for the 2008-09 regulations for these
species. Proposed hunting regulations were discussed for late seasons.
We will publish proposed frameworks for the 2008-09 late-season
migratory bird hunting regulations in a late August 2008 Federal
Register.
The final rule described here is the sixth in the series of
proposed, supplemental, and final rulemaking documents for migratory
game bird hunting regulations and deals specifically with amending
subpart K of 50 CFR part 20. It sets hunting seasons, hours, areas, and
limits for mourning, white-winged, and white-tipped doves; band-tailed
pigeons; rails; moorhens and gallinules; woodcock; common snipe;
sandhill cranes; sea ducks; early (September) waterfowl seasons;
mourning doves in Hawaii; migratory game birds in Alaska, Puerto Rico,
and the Virgin Islands; youth waterfowl hunting day; and some extended
falconry seasons.
National Environmental Protection Act (NEPA) Consideration
NEPA considerations are covered by the programmatic document
``Final Supplemental Environmental Impact Statement: Issuance of Annual
Regulations Permitting the Sport Hunting of Migratory Birds (FSES 88-
14),'' filed with the Environmental Protection Agency on June 9, 1988.
We published Notice of Availability in the Federal Register on June 16,
1988 (53 FR 22582). We published our Record of Decision on August 18,
1988 (53 FR 31341). In addition, an August 1985 environmental
assessment entitled ``Guidelines for Migratory Bird Hunting Regulations
on Federal Indian Reservations and Ceded Lands'' is available from the
address indicated under the caption FOR FURTHER INFORMATION CONTACT.
In a notice published in the September 8, 2005, Federal Register
(70 FR 53376), we announced our intent to develop a new Supplemental
Environmental Impact Statement for the migratory bird hunting program.
Public scoping meetings were held in the spring of 2006, as detailed in
a March 9, 2006, Federal Register (71 FR 12216). We have prepared a
scoping report summarizing the scoping comments and scoping meetings.
The report is available by either writing to the address indicated
under FOR FURTHER INFORMATION CONTACT or by viewing on our Web site at
http://www.fws.gov/migratorybirds.
Endangered Species Act Consideration
Section 7 of the Endangered Species Act, as amended (16 U.S.C.
1531-1543; 87 Stat. 884), provides that, ``The Secretary shall review
other programs administered by him and utilize such programs in
furtherance of the purposes of this Act'' (and) shall ``insure that any
action authorized, funded, or carried out * * * is not likely to
jeopardize the continued existence of any endangered species or
threatened species or result in
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the destruction or adverse modification of [critical] habitat. * * *.''
Consequently, we conducted formal consultations to ensure that actions
resulting from these regulations would not likely jeopardize the
continued existence of endangered or threatened species or result in
the destruction or adverse modification of their critical habitat.
Findings from these consultations are included in a biological opinion,
which concluded that the regulations are not likely to adversely affect
any endangered or threatened species. Additionally, these findings may
have caused modification of some regulatory measures previously
proposed, and the final frameworks reflect any such modifications. Our
biological opinions resulting from this Section 7 consultation are
public documents available for public inspection at the address
indicated under ADDRESSES.
Executive Order 12866
The Office of Management and Budget has determined that this rule
is significant and has reviewed this rule under Executive Order 12866.
OMB bases its determination upon the following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act
The regulations have a significant economic impact on substantial
numbers of small entities under the Regulatory Flexibility Act (5
U.S.C. 601 et seq.). We analyzed the economic impacts of the annual
hunting regulations on small business entities in detail as part of the
1981 cost-benefit analysis discussed under Executive Order 12866. This
analysis was revised annually from 1990-95. In 1995, the Service issued
a Small Entity Flexibility Analysis (Analysis), which was subsequently
updated in 1996, 1998, 2004, and 2008. The primary source of
information about hunter expenditures for migratory game bird hunting
is the National Hunting and Fishing Survey, which is conducted at 5-
year intervals. The 2008 Analysis was based on the 2006 National
Hunting and Fishing Survey and the U.S. Department of Commerce's County
Business Patterns, from which it was estimated that migratory bird
hunters would spend approximately $1.2 billion at small businesses in
2008. Copies of the Analysis are available upon request from the
address indicated under FOR FURTHER INFORMATION CONTACT or from our Web
site at http://www.fws.gov/migratorybirds/reports/reports.html or at
http://www.regulations.gov.
Small Business Regulatory Enforcement Fairness Act
This rule is a major rule under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act. For the reasons outlined above,
this rule has an annual effect on the economy of $100 million or more.
However, because this rule establishes hunting seasons, we do not plan
to defer the effective date under the exemption contained in 5 U.S.C.
808(1).
Paperwork Reduction Act
We examined these regulations under the Paperwork Reduction Act of
1995 (44 U.S.C. 3501 et seq.). The various recordkeeping and reporting
requirements imposed under regulations established in 50 CFR part 20,
Subpart K, are utilized in the formulation of migratory game bird
hunting regulations. Specifically, OMB has approved the information
collection requirements of our Migratory Bird Surveys and assigned
control number 1018-0023 (expires 2/28/2011). This information is used
to provide a sampling frame for voluntary national surveys to improve
our harvest estimates for all migratory game birds in order to better
manage these populations. OMB has also approved the information
collection requirements of the Alaska Subsistence Household Survey, an
associated voluntary annual household survey used to determine levels
of subsistence take in Alaska, and assigned control number 1018-0124
(expires 1/31/2010). A Federal agency may not conduct or sponsor and a
person is not required to respond to a collection of information unless
it displays a currently valid OMB control number.
Unfunded Mandates Reform Act
We have determined and certify, in compliance with the requirements
of the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this
rulemaking will not impose a cost of $100 million or more in any given
year on local or State government or private entities. Therefore, this
rule is not a ``significant regulatory action'' under the Unfunded
Mandates Reform Act.
Civil Justice Reform--Executive Order 12988
In promulgating this rule, we have determined that it will not
unduly burden the judicial system and that it meets the requirements of
sections 3(a) and 3(b)(2) of Executive Order 12988.
Takings Implication Assessment
In accordance with Executive Order 12630, this rule, authorized by
the Migratory Bird Treaty Act, does not have significant takings
implications and does not affect any constitutionally protected
property rights. This rule will not result in the physical occupancy of
property, the physical invasion of property, or the regulatory taking
of any property. In fact, these rules allow hunters to exercise
otherwise unavailable privileges and, therefore, reduce restrictions on
the use of private and public property.
Energy Effects--Executive Order 13211
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. While this rule is a
significant regulatory action under Executive Order 12866, it is not
expected to adversely affect energy supplies, distribution, or use.
Therefore, this action is not a significant energy action and no
Statement of Energy Effects is required.
Government-to-Government Relationship With Tribes
Due to the migratory nature of certain species of birds, the
Federal Government has been given responsibility over these species by
the Migratory Bird Treaty Act. Thus, in accordance with the President's
memorandum of April 29, 1994, ``Government-to-Government Relations with
Native American Tribal Governments'' (59 FR 22951), Executive Order
13175, and 512 DM 2, we have evaluated possible effects on Federally
recognized Indian tribes and have determined that there are no effects
on Indian trust resources. However, in the April 11 proposed rule we
solicited proposals for special migratory bird hunting regulations for
certain Tribes on Federal Indian reservations, off-reservation trust
lands, and ceded lands for the 2008-09 migratory bird hunting season.
The resulting proposals will be contained in a separate proposed rule.
By virtue of these actions, we have
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consulted with all the Tribes affected by this rule.
Federalism Effects
Due to the migratory nature of certain species of birds, the
Federal Government has been given responsibility over these species by
the Migratory Bird Treaty Act. We annually prescribe frameworks from
which the States make selections regarding the hunting of migratory
birds, and we employ guidelines to establish special regulations on
Federal Indian reservations and ceded lands. This process preserves the
ability of the States and tribes to determine which seasons meet their
individual needs. Any State or tribe may be more restrictive than the
Federal frameworks. The frameworks are developed in a cooperative
process with the States and the Flyway Councils. This process allows
States to participate in the development of frameworks from which they
will make selections, thereby having an influence on their own
regulations. These rules do not have a substantial direct effect on
fiscal capacity, change the roles or responsibilities of Federal or
State governments, or intrude on State policy or administration.
Therefore, in accordance with Executive Order 13132, these regulations
do not have significant federalism effects and do not have sufficient
federalism implications to warrant the preparation of a Federalism
Assessment.
Regulations Promulgation
The rulemaking process for migratory game bird hunting must, by its
nature, operate under severe time constraints. However, we intend that
the public be given the greatest possible opportunity to comment. Thus,
when the preliminary proposed rulemaking was published, we established
what we believed were the longest periods possible for public comment.
In doing this, we recognized that when the comment period closed, time
would be of the essence. That is, if there were a delay in the
effective date of these regulations after this final rulemaking, States
would have insufficient time to select season dates and limits, to
communicate those selections to us, and to establish and publicize the
necessary regulations and procedures to implement their decisions. We
therefore find that ``good cause'' exists, within the terms of 5 U.S.C.
553(d)(3) of the Administrative Procedure Act, and these regulations
will, therefore, take effect immediately upon publication. Accordingly,
with each conservation agency having had an opportunity to participate
in selecting the hunting seasons desired for its State or Territory on
those species of migratory birds for which open seasons are now
prescribed, and consideration having been given to all other relevant
matters presented, certain sections of title 50, chapter I, subchapter
B, part 20, subpart K, are hereby amended as set forth below.
List of Subjects in 50 CFR Part 20
Exports, Hunting, Imports, Reporting and recordkeeping
requirements, Transportation, Wildlife.
Dated: August 25, 2008.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
0
For the reasons set out in the preamble, title 50, chapter I,
subchapter B, part 20, subpart K of the Code of Federal Regulations is
amended as follows:
PART 20--[AMENDED]
0
1. The authority citation for part 20 continues to read as follows:
Authority: 16 U.S.C. 703-712 and 16 U.S.C. 742 a-j, Public Law
106-108.
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[FR Doc. E8-20080 Filed 8-28-08; 8:45 am]
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